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No Compulsory Sharia for Greek Muslims, European Court Rules

Greek law had provided (or some Greek courts had ruled) that Greek Muslims' will disputes would be resolved under Islamic law -- but that's forbidden religious discrimination, rules the European Court of Human Rights.

Greece, like some other countries (such as Israel and India) provides that certain "personal status" disputes -- such as those involve family law and the distribution of property at death -- are decided by religious courts of the person's religion. In Greece, this used to apply to Jews and Muslims, but since 1946 applied only to Muslims in a particular province.

Such a rule means that how much you inherit under a will may well depend on the testator's religion. Indeed, Molla Sali's husband left her all his property under a will, and in Greek secular courts that will would be enforced as written; but because he was Muslim, Greek courts concluded that Islamic law applied, and under Islamic law the wife would only get one-quarter of the property, regardless of the will. (The provision was legistlatively made optional in 2018, to be used only when the person expressly agreed, but the Greek proceedings in this case happened before then.)

In Wednesday's decision (Molla Salli v. Greece), the European Court of Human Rights held that this was impermissible religious discrimination:

[Molla Salli], as the beneficiary of a will made in accordance with the Civil Code by a testator of Muslim faith, was in a relevantly similar situation to that of a beneficiary of a will made in accordance with the Civil Code by a non-Muslim testator, and was treated differently on the basis of "other status", namely the testator's religion.

Nor was the court persuaded by the argument that this discrimination was justified because it was called for by treaties that protected the rights of Muslim minorities in Greece and Christian minorities in Turkey; among other things, the court concluded that the treaties didn't require Greece to apply Muslim law.

The court expressly distinguished a situation where choice-of-law rules call for application of foreign law, and the foreign law happens to be based on Islamic law: "In such cases, ... Islamic law is not applied as such but as the law of a (non-European) sovereign State, subject to the requirements of public-policy" (I take it that the last clause refers to the rule that one country will only apply a foreign country's law when the foreign law does not violate the applying country's important public policies).

The court's decision also doesn't deal with religious arbitration under contractual provisions, since rules allowing such arbitration don't themselves involve governmental religious discrimination. And the court didn't have to reach the separate question whether the Greek legal system's application of Islamic property distribution rules would be invalid because those rules discriminate based on sex (since "[m]ale heirs have double the share in the estate as compared with female heirs"). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: I changed the first two paragraphs to clarify that the compulsory application of Islamic law was only in force in a particular province, where there is a particularly substantial Muslim population, and also to note that the compulsory nature of the rule was repealed in 2018; thanks to commenter Marinned for reminding me about this.

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  • SQRLSY One||

    If'n ye are a Scientologist, yer fate will be decided by the Cruel Galactic Emperor Zebu Himself! Unless ye have paid $134,097,987.13 or more in "voluntary donations" to have yer scamscramblegrams audited away, via the fleece-meter!!!

    After all, USA Government Almighty has found Scientology to be a legitimate "church"! So there!!!

    (Ye must submit to either Government Almighty, or yer "Church". Submitting yerself unto yerself, will NOT be allowed!!!)

  • Rat on a train||

    The Church of Festivus settles disputes with feats of strength.

  • MatthewSlyfield||

    So, kick boxing?

  • James Pollock||

    Doesn't seem like a very fair system, at least for wills. The dead guy won't put up much of a fight.

  • Martinned||

    Actually, IIRC this is a rule that's specific to the province of West Thrace. When the Turkish and the Greeks made peace in 1923 by shoving all the Christians to one side of the border and all the Muslims to the other side, they made an exception for West Thrace. As a result, that's the only part of Greece that has mosques, and until recently it was the only part of Greece that still had the old Ottoman personal status law. In fact, Turkey already abolished it in the 1920s, but Greece still had it until recently because nobody realised. When they did, they went "O shit, we have Sharia law!" and quickly abolished it.

  • Eugene Volokh||

    Sorry, you're right, and I should have mentioned this in the post -- just updated it, thanks!

  • James Pollock||

    How is "I am Muslim, so my estate is settled by a Muslim religious court" different from "I am not Muslim, but my estate will be settled by an arbitrator selected by the following method which I decree while still alive and possessed of all my faculties...", other than the latter spares the probate court the difficulty of determining what my religious status was at the exact instant of my death?

    It seems to me that the court can decide the instant case without trying to determine whether anyone else's property distribution should also be altered?

    Will the European courts be coming after the Viking funerals next?
    ("That's right, settle all my debts, and pile everything else I own into a boat, light it on fire, and push it out of the harbor. What? Hazard to navigation? Then push harder.")

  • MatthewSlyfield||


    How is "I am Muslim, so my estate is settled by a Muslim religious court" different from "I am not Muslim, but my estate will be settled by an arbitrator selected by the following method...

    it's not, but neither of those things are what got overturned in Greece. Greece had a law that if you were Muslim, you estate would be settled by Islamic law, even if your will explicitly specified some other choice of law.

  • James Pollock||

    Right. So, instead of allowing people to choose to have the religious courts handle their estates, they decided that nobody could do so.

  • James Pollock||

    Or, at a minimum, made it harder for them to do so.

  • Eugene Volokh||

    Why do you say that? As I wrote in the post, "the court's decision also doesn't deal with religious arbitration under contractual provisions, since rules allowing such arbitration don't themselves involve governmental religious discrimination." Indeed, in the U.S., such contractual arbitration is routinely allowed, even though a statute such as the Greek one struck down in this case would be clearly unconstitutional religious discrimination.

    Is there something I'm missing about the decision that would make it harder for people to "choose to have ... religious courts handle their estates," as opposed to making it harder for the government to compel some people to do that because of their religions?

  • James Pollock||

    Is there something I'm missing about the decision that would make it harder for people to "choose to have ... religious courts handle their estates,"

    I only have your reporting to work from.

    But the ruling seems a bit overreaching, in the sense that they're answering a question they didn't need to reach.
    The court could have said "A valid civil will trumps religious court", applied that ruling to this case, and found that this case involved a valid civil will, and therefore would proceed according to the terms of the will rather than proceeding to religious court.
    In turn, that leaves all the other cases that don't involve a valid will in status quo.
    Then, if the legislature decides to remove the religious courts from the picture, they can amend the law.

    (There is a tendency to "EEK! Sharia!" in some circies here in America. I don't object to people who choose to submit themselves to Sharia being bound by Sharia, most of the time. Admittedly, most of my thoughts on religious courts have been in the area of marriage, where religious and civil aspects can be severed and handled separately.)

  • Eugene Volokh||

    1. I'm not sure that the European Court of Human Rights could have resolved the case on the theory that "a valid civil will trumps religious court," because I don't know of any European human rights law principle that so states.

    But there is a European human rights law principle that says that the government may not discriminate based on religion. This Greek law discriminates based on religion -- non-Muslims have the right to distribute their property to whomever they please, while Muslims don't (because they are subject to Islamic law, which limits testamentary freedom this way). That's religious discrimination, and therefore invalid.

    2. I agree, and have indeed long argued, that people should indeed be free to contract to have their disputes resolved under religious law (or secular law). But, again, nothing in the European court decision casts doubt on that. Can you point me to any passage that does?

  • MatthewSlyfield||

    No, they didn't. They only decided that the government couldn't force them to have religious courts handle their estates, nothing more.

  • James Pollock||

    "They only decided that the government couldn't force them to have religious courts handle their estates, nothing more."

    So... what happens to the next Muslim guy who dies. More specifically, what happens to his stuff? If he intended that it be distributed by a religious court, and took the necessary steps to make this happen under the old law (i.e., nothing), then his intent is thwarted.

    The principle that I'm looking at is the question of whether a legal ruling between two parties should affect a non-party. This ruling affects people who weren't party to the dispute being adjudicated. I'm not convinced that that was necessary.
    On the other hand, I'm not Muslim, not Greek, and not even European, so my interest is muted.

  • MatthewSlyfield||

    "If he intended that it be distributed by a religious court, and took the necessary steps to make this happen under the old law (i.e., nothing), then his intent is thwarted."

    Actually, I would contend that in such a case you can not reasonably infer any intent for any specific distribution of his property.

  • James Pollock||

    "1. I'm not sure that the European Court of Human Rights could have resolved the case on the theory that "a valid civil will trumps religious court," because I don't know of any European human rights law principle that so states."

    Due process would do the job. Are Europeans not guaranteed due process of law?
    If person A writes out an otherwise valid will, and it is ignored when the time comes to distribute property, that's a due process violation.

  • David Nieporent||

    It is?

  • James Pollock||

    Hypothetical government actor: Hi, we're going to distribute your property without your input.
    Hypothetical You: OK.

  • Eugene Volokh||

    You seem to speak with great confidence about such matters. Do you have any actual evidence that, under European law, statutes that limit testamentary freedom violate due process?

    For instance, say that there's no religious discrimination involved, and a European country implements the "legitime" principle, under which, notwithstanding a will, certain relatives (such as adult children) are entitle to some share of the estate. (I understand a few European countries have such a rule, though I'm not sure.) Would that really be a violation of European law?

    You might think this should be viewed as a due process violation, on the theory that the (substantive) testamentary freedom principle is embodied within due process, as opposed to just being a general presumption that national legislatures can displace when necessary. But can you point to cases that say that it actually would be? Recall that, for your criticism of the European Court to work, that must be an argument that is actually recognized under European law.

    Beyond that, do you have any indication that this case was litigated on this principle, and that the parties raised a due process objection? If not, do you have any indication that European courts would routinely just come up with such an alternative constitutional claim to decide a case, especially when the case can be resolved under a claim that actually was raised -- that the law discriminates based on religion?

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